Article 40.1-40.8 of the Chapter 40 of the Law on Criminal Procedure shall be adhered to adjudicate an appeal at the cassation session.

Article 40.1. Lodging complaint or protest for cessation instance proceedings

1. Based on the following grounds against the decision of the court of appellate instance, participants of criminal procedure may submit complaint or the prosecutor or upper-level prosecutor may file a protest for cessation instance proceedings:

1.1. incorrect application of the Criminal Code by the court;

1.2 serious violation of the Law on Criminal Procedure have influenced or could have influenced the decision of the court.

2. Complaints and/or protest for cessation instance proceedings shall be submitted within 14 days after the decision of the court of appellate instance is handed over or delivered according to Section 4 of the Article 39.10 of this law.

4. Person who submitted complaint or protest for cessation instance proceedings may withdraw such complaint or protest before the cessation instance court starts adversary proceeding of the trial.

5. Submitting complaint or protest for cessation instance proceedings shall not serve as grounds to suspend the enforcement of the decision of appellate instance court.

6. Complaint and protest for cessation instance proceedings shall specify the following:

6.1. name of the court that will resolve the complaint or protest;

6.2. given and family names, and residential addresses of the individual who lodged protest, name, address, and current location of legal entity;

6.3. given and family names, official position of the person who submitted the protest;

6.4. given and last names, residential address, and other necessary information of the individual who will be present as advocate;

6.5. which decision of which court is being complained or protested;

6.6. brief content of the case as stated in the decision of first and appellate instance courts;

6.7. legal grounds and evidencing proof of the complaint and protest;

6.8. proposal and request of complaining or protesting person;

6.9. documents attached and the list of attachments.

7. In case the period for submitting complaint and protest for cessation instance proceedings has expired for a reasonable excuse, request for restoration of period shall be resolved according to rules set forth in sections 5, 6, 7 and 8 of Article 38.2 of this law.

8. The Prosecutor General and the prosecutor appointed by the Prosecutor General shall have the right to get familiarized with the case file materials in order to write a protest for cessation instance proceedings.

9. An advocate shall have the complaint for the cessation instance proceedings introduced to his/her client before delivering it to the court.

10. An advocate should not withdraw the complaint for cessation instance proceedings without permission of his/her client.

Article 40.2. Receiving complaint and protest for cessation instance proceedings

1. The court that concerned the case by the rules of the first instance procedure shall receive the complaint and protest for cessation instance proceedings and shall execute the operations stated in Article 38.3 of this law.

2. The court that received complaint and protest shall deliver the case to the Supreme Court together with complaint, protest and comments.

3. Upon receipt of complaints and protests, the court of cessation instance shall discuss them by the meeting of all judges within 21 days and the cases which four or more judges voted to review by cessation instance rules, shall be reviewed based upon resolution [of the meeting of all judges].

4. In case complaint or protest was not included in the resolution [of the meeting of all judges] stated in section 3 of this Article, it shall be considered that the court of cessation instance refused to review such complaint or protest by cessation instance rules and a resolution shall be issued accordingly.

5. The resolutions stated in sections 3 and 4 of this Article shall come into force as soon as it is signed by judges. Such decision shall be the final and non-appealable. 

5.1. complaint or protest fails to satisfy requirements set forth in section 6 of Article 40.1 of this law;

5.2. the person who submitted complaint or protest for cessation instance proceedings is not an individual or legal entity that has legal competence to submit such complaint and protest;

5.3. period for submitting complaint and protest has expired;

5.4. issue does not fall under the jurisdiction of the court of cessation instance;

5.5. previous court decision that resolved the same case by cessation instance rules, remains valid;

5.6. complaint or protest for cessation instance proceedings has been withdrawn.

6. During the discussion [by the meeting of all judges] whether to review a complaint or protest by cessation instance rules, the presence of any participant or prosecutor shall not be allowed. This decision shall be the final decision.  

Article 40.3. Time limit for reviewing and resolving a case at the court of cessation instance

1. After the receipt of the case file, the court shall review the case by the cessation instance proceedings within 30 days and this time limit may extended once by the meeting of all judges of the Criminal Chamber of the Supreme Court of Mongolia considering the proposal of a judge.

Article 40.4. Date of the trial [of cessation instance court]

1. The trial date of the cessation instance court trial shall be notified to the prosecutor and participants who lodged the complaint and participants who requested to be present at the court trial according to rules set forth in Article 11.9 of this law.

2. Failure to appear at court by participants of criminal procedure, except the prosecutor, shall not serve as the ground for postponing the court trial.

Article 40.5. Competence of the court of cessation instance

1. The court that is reviewing a case by cessation instance rules shall not have the right to establish any fact which was not established or which was negated by decisions made by courts of first and appellate instances or consider that such fact was proven, or to consider that any evidence more significant than others, and also shall not have right to resolve in advance any issue related to what article, section, sub-section of the Criminal Code should be applied by or what sentence should be imposed by courts of first and appellate instance courts.

2. Cessation instance court shall review whether the courts of first and appellate instances applied the Criminal Code incorrectly or serious violation of the Law on the Criminal Procedure by such lower instance courts have influenced the court decision or if such courts have used law by explaining such law differently than the official interpretation issued by the Supreme Court.

3. Incorrect application of Criminal Code and serious violation of the Law on the Criminal Procedure shall refer to the statements provided in articles 39.7 and 39,8 of this law.

4. The court of cessation instance shall not review a case on the grounds other than those stated in section 3 of Article 40.1 of this law.

5. When reviewing a case by cessation instance rules, the court shall review all the proceedings and all the decisions fully.

Article 40.6. Criminal proceedings at the court of cessation instance

1. Judicial panel for reviewing a case by cessation instance rules shall be composed of five judges of the Supreme Court, and the composition of judicial panel and the presiding judge shall be appointed by preset rules.

2. The presiding judge shall open the trial by announcing names of alleged defendant and victim, the brief of the case, and ask the prosecutor and participants if they have any challenge or recusal of the judicial panel or other participants or if they have other proposals and request about the case.

3. Reporting judge shall report about the case under review and present the content of court decision, grounds of complaint and/or protest for cessation instance proceedings without including own subjective judgments.

4. The prosecutor or advocate who submitted complaint or protest for the cessation instance proceedings shall present the grounds for his/her complaint or protest.

5. Judicial panel shall ask questions and have answers from parties with permission of the presiding judge.

6. After the prosecutor introduces legal conclusion and advocate presents his/her opinion, the judicial panel shall make their decision in the deliberation room.

Article 40.7. Consultation for issuing the court decision

1. The court shall make its decision by holding closed to public consultation in the deliberation room. The presiding judge shall facilitate voting and decision making in the deliberation room and each issue shall be resolved based on the majority of votes.

2.  During the consultation in the deliberation room, all judges shall have equal right of vote and shall freely express, explain their positions and proposals.

3. Judge who forms minority of the votes in the deliberation room shall have right to explain his/her grounds and to carry out another voting.

Article 40.8. Decision of the court of cessation instance

1. The court of cessation instance shall make one of the following decisions:

1.1. repeal complaint and/or protest for cessation instance proceedings and affirm the decision of the first instance court;

1.2. wholly or partially terminate the decisions of the first instance and appellate instance courts and repeal the criminal case;        

1.3. wholly or partially terminate decisions of first instance and appellate instance courts based upon grounds stated in section 1 of Article 33.3 and/or section 6.2 of Article 34.7 of this law and return the case to the prosecutor or to the lower instance proceedings;

1.4. modify first and appellate instance court decisions without increasing the criminal punishment stated in the Criminal Code and the sentence;

1.5. leave the complaint and protest without reviewing based on the grounds stated in section 5 of Article 40.2 of this law;

1.6. In case the court considers that the law to be applied by the court is not compliant with the Constitution of Mongolia, a proposal about submission of a request to the Constitutional Court shall be submitted to the meeting of all judges of the Supreme Court;

2. The Presiding judge of the cessation instance trial shall introduce the content of court decisions stated in sections 1.1, 1.2 and 1.3 of this Article.

3. Within 30 days after presenting the decision of the cessation instance court, the reporting judge shall issue the decision in writing.

4. The presiding judge and judicial panel shall sign on the decision of the court of cessation instance.

5. Decision of the cessation instance court shall be attached to case file together with special proposal of a judge, and the copy of the decision shall be handed over according to Article 36.10 of this law to the persons who complained or protested.

Rights to exercise in addition to its judicial adjudication power